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The Folly of a Racialized Criminal Justice Reform Debate

In the wake of the 2014 shooting of Michael Brown and the subsequent upheavals in Ferguson, Missouri, a number of political pundits implored Americans to engage in a “national conversation about race,” particularly as it pertained to racial disparities in the criminal justice system. These exhortations were understandable. America has the highest rate of incarceration in the world and—in state prisons—blacks are incarcerated at five times the rate of whites. America has a well documented history of subjecting blacks to police brutality, and reform advocates will often claim that this racially motivated mistreatment persists today.

Well intentioned activists seek to rectify this state of apparent racial injustice. However, almost four years after Ferguson, no federal legislation has been passed. While several states have enacted meaningful reforms, the system as a whole remains unaltered. What explains this failure? By all reasonable accounts, we have had the demanded ‘national conversation’ about race in the intervening years since Ferguson. Apparently, and perhaps predictably, that discussion has been unproductive.

Race as a Distraction and Means of Alienation

After high-profile incidents of putative police misconduct involving black men—e.g., Alton Sterling, Laquan Mcdonald, Walter Scott, and Philando Castile—a general sentiment emerged that such egregious treatment could only have befallen a black person. From this perspective, it strains credulity that a white male might be shot in the back while fleeing an officer, in the manner of Walter Scott.

However, there have been numerous comparable instances of police shooting white men that have resulted in allegations of police misconduct and wrongdoing, such as Daniel Shaver, Dylan Noble, Michael Parker, and James Boyd, among many others. These examples confound the theory that skin color somehow inoculates white men from instances of police brutality and the use of excessive force. However, the asymmetry in the volume of media coverage, coupled with the already racialized narrative surrounding police misconduct, creates a misleading impression that these are issues that afflict blacks exclusively, and this risks diminishing support—or at least agitation—for reform.

The standard race-based narrative also distorts our understanding of the history of the criminal justice system (and the drug war, in particular) as well as the causal forces responsible for its current condition. For instance, it is often noted that distribution of five grams of crack cocaine and distribution of 500 grams of powdered cocaine were, until relatively recently, both punishable by a five year mandatory minimum sentence. The standard explanation for this sentencing disparity is that it was a pretext for inflicting excessive punishment on blacks (who disproportionately use and deal crack) relative to whites (who disproportionately use and deal cocaine). This explanation, however, overlooks several important factors that contributed to the sentencing disparity. Firstly, during the crack epidemic of the 1980s, members of the black middle class and black political leaders agitated for an increased police presence in their neighborhoods and clampdowns on drug dealers.

Secondly, the race-based explanation for the sentencing disparity overlooks our societal misunderstanding of the pharmacology of drugs in general. A debate informed by political rhetoric and tabloid fear-mongering rather than science has resulted in a widespread tendency to overstate the harmful effects and addictive qualities of many drugs. Thirdly, the focus on the cocaine/crack disparity ignores other complicating examples. Methamphetamine is predominantly used and dealt by whites and the distribution of five grams of meth is also punishable by five years in prison. As Mike Riggs observed in an article for Reason, “With the passage of the Fair Sentencing Act in 2010, the minimum quantity of crack cocaine necessary for a five-year mandatory minimum was raised to 28 grams; the minimum quantity for methamphetamine remains five grams.”

A more well informed understanding of the history of the criminal justice system and relevant legislation would enable us to preempt and respond to social phenomena more effectively without recourse to moral panics over particular substances and disproportionately authoritarian and ineffective solutions. Race-oriented rhetoric only inflames emotions, alienates potential allies (who might have otherwise been sympathetic), and hinders our ability to defuse unfounded hysteria.

Racial Disparities Today

As regular readers of Quillette will already be aware, disparities between different demographics are not always accounted for entirely—or even mostly—by discrimination. After controlling for relevant variables—such as a prior criminal record, geographic differences (location/population density), etc.—social scientists have consistently found that disparities in the criminal justice system often collapse and approach parity.

A 1997 meta-analysis conducted at Harvard concluded that “findings on the processing of adult index crimes generally support” the non-discrimination thesis. A more concrete example of the mechanics of these confounding cultural factors can be found in a Bureau of Justice study which analyzed the disparity in drug arrests. The commonly expressed grievance is that while blacks and whites use drugs at similar rates, blacks are punished far more heavily for doing so. However, after controlling for numerous factors—type of drug used, location where the drugs were sold, frequency of drug use, and likelihood of reporting use to surveyors—the Bureau of Justice discovered that the gap in arrest rates greatly diminished.

Scott Alexander and Heather Mac Donald have also both published detailed surveys of racial disparities at multiple tiers of the criminal justice system. Although the discrepancy in the rate of drug arrests does not appear to be primarily fueled by racial bias, the configuration of circumstances (e.g.: dealing drugs outside in urban areas with a higher police presence due to higher homicide rates) that lead to the inflated black arrest rate is by no means just. But this reality only enhances the moral imperative to reevaluate the efficacy of the war on drugs.

I should caution that some of the cultural phenomena giving rise to these disparities are outgrowths of brutal historical racial persecution and a lack of opportunity. For instance, structural factors, such as a lack of education and employment options, might help us to understand blacks’ disproportionate rates of violent crime. Similarly, culturalfeatures prevalent in some black communities are neither endogenous nor wholly unrelated to the backdrop of structural racism. So America’s history of iniquitous subjugation and disenfranchisement of black people should certainly not be disregarded in these analyses. The mistake is to assume that America’s troubled history of race relations are the beginning and end of all relevant discussion.

Actionable and Efficacious Policy Solutions

Even if we were to grant—arguendo—that America is still as fundamentally racist as Ta-Nehisi Coates and his ideological fellow-travelers claim, a race-centric discourse only leads to dead-end policy outcomes and precludes a more sober consideration of potentially auspicious avenues of action. Policy solutions that focus exclusively on race tend to be ineffective or counterproductive: mandatory diversity training does not work and simply hiring more black police officers doesn’t appear to significantly reduce police wrongdoing or avoidable shootings.

Furthermore, activists’ inclination to impute racial animus to all aspects of the criminal justice system forecloses careful examination of more propitious approaches. For example, in response to the 2014 death of Eric Garner, it might have been more useful to have focused on the NYPD’s chokehold policy and the reason for Garner’s confrontation with law enforcement in the first place than on NYPD officer Daniel Pantaleo’s alleged racism. This was what Senator Rand Paul elected to do, astutely observing that NYC’s high cigarette tax rate had helped to create a black market and a consequent clampdown on dealers and buyers. Senator Paul was widely mocked for his comments by progressive commentators—of course Republicans want to make everything about taxes!—but the point nevertheless deserved consideration. A surfeit of laws inevitably requires a higher level of enforcement, which in turn increases the number of civilian-law enforcement interactions and the probability of violent altercations and civil liberties violations.

If progressives are reluctant to acknowledge arguments like these, it may be because doing so would require them to confront—and possibly reconsider—their own paternalistic and regulatory impulses which have failed to bring about effective policy solutions. A universalist, colorblind, and civil libertarian approach focused on a dispassionate assessment of causes and outcomes is not only more likely to produce better results; it is also more conducive to unity, coalition-building, and a more accurate apprehension of the current state of affairs and its requisite fixes.

Writing in Reason magazine last year, Thaddeus Russell put his finger on the crux of the issue:

Today, there are more than 500,000 white inmates in state or federal prisons, and the incarceration rate for whites is 465 out of 100,000—higher than the rates of Russia, China, India, Brazil, Mexico, Rwanda, and Iran. Even if we freed all black and Latino inmates tomorrow, the United States would have the fourth-largest prison population in the world… racial reductionism allows no way to understand this—and no way to end it.

Max Hyams is an undergraduate at Philosophy and Political Science Major at Binghamton University. You can follow him on Twitter @MaxHyams

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23 Comments

Very good article.
When you start taking some critical distance with “racial discrimination everywhere” kind of arguments, you realize that all those ideas collapse quickly, as soon as you start taking factors other than race in consideration, or stop hiding the politically incorrect facts.

In France, we had a similar public debate a few years ago. A study by sociologists revealed by that Black and Arab men were much more likely to be stopped and have their identity checked by police than White men, which created a huge scandal, made even worse by right-wing journalist Eric Zemmour who explained that those categories of the population received more police attention because they commit more crimes. In the midst of the scandal provoked by Zemmour, a judge wrote to the newspaper and gave confirmation that yes, indeed, different categories of the population committed crimes at a very different rate, as anybody who spent some time in a courthouse could see, and that therefore it was not abnormal for the police not to grant them the same attention. I was especially shocked by the hypocrisy of journalists and intellectuals who had no problem with the police granting more attention with categories of the population defined by age (young people rather than older ones) and sex (men rather than women) but rejected as a matter of principle the idea that on average people of a specific ethnicity could commit more crimes than members of another and that police could take that fact in consideration.

Very true. It’s easy to attribute the disparities between groups of people to discrimination alone, and approach all relevant discussions from a position, as you said, informed by “fear-mongering rather than science.” It’s more difficult, but far more worthwhile, to be properly informed.

However, the asymmetry in the volume of media coverage, coupled with the already racialized narrative surrounding police misconduct, creates a misleading impression that these are issues that afflict blacks exclusively, and this risks diminishing support—or at least agitation—for reform.

This is an excellent point. Not only are deaths of blacks by police amplified by US media, they are also covered by the international press disproportionately. I recall reading the Guardian’s readers comments and many believed erroneously the approx. 1100 Americans killed by police in 2016 were all unarmed blacks. Would asymmetrical amplification be the blame? Yet, if a white is killed in the same manner coverage remains localised and minimised. Further, when whites are victimised in hate crimes, such as the unnamed victim kidnapped and tortured for two days by four blacks, you find national media outlets such as NPR asking A Discomfiting Question: Was The Chicago Torture Case Racism? If the shoe were on the other foot we’d all know the name of unnamed victim because you’d hear about it endlessly. In cases involving a black victim and police it’s immediately declared racism, yet when blacks victimise whites and even other non-black people of colour media minimises coverage and often deflects to bring it back to black victimisation. There may only be one victim. The eternal one.

In some ways, this case being called a “hate crime,” while a legal designation, might give people a rhetorical reprieve, as it allows us to talk about bias and violence without having to fight over the definition of racism.

It reminded me of something Phillip Atiba Goff, who runs the Center for Policing Equity at John Jay College, told me a few weeks ago. “One of the most important achievements of the Civil Rights Movement was to take the authority over moral character away from white men,” Goff told me. “There’s no credential that [restores it]…”

Astonishing to think morality is racialised in and the academic finds this to be an achievement. Are (male) whites stigmatised by original sin?

Moving on to drug offences. You ever notice how so many people are absolutely convinced a huge number of black men are imprisoned for cannabis? This is due to how reporters frame the narrative. An article will spend the first few paragraphs reporting the sad plight of some young black man who was jailed for possession of pot. The remainder of the article is about how 20% or so of the prison population, overwhelmingly black, is incarcerated for drugs offences. All due to systemic racism, of course. An observant reader will notice the switch. Possession of drugs is a type of drugs offence, but it’s not the only type of drugs offence, is it? The kind of drugs offences that land people is jail and prison are trafficking, dealing, manufacturing, and possession of large enough quantity which indicate intent to distribute. About half of federal prisoners and 16% of state prisoners are locked up for serious drugs offences. This is very different from simple possession of a few joints, which many think are the petty criminals crowding the prisons.

In many jurisdictions first time simple possession of a small quality is an infraction much like a parking ticket. In other places it’s a misdemeanor that’s handled by a fine, community sentence, parole, or an administrative procedure. But, there are times when a minor issue is treated severely. First timers who are within the protected area of a school or other at-risk populations are punished more harshly. The parents, teachers, and communities campaigned for these special zero-tolerance zones.

Another way of framing the narrative is to report drug use by blacks and whites is the same, which reportedly it is, yet blacks are imprisoned disproportionately for (again) drugs offences. And again it fails to distinguish use from dealing, trafficking, etc.

In case you’re wondering, about 0.7% of the convicted population is incarcerated for possession of marijuana as the only charge, and only 0.3% were first-time offenders, www(dot)ncjrs(dot)gov/ondcppubs/publications/pdf/whos_in_prison_for_marij.pdf

Of those imprisoned for drugs offences about 40% are Hispanic, which doesn’t seem odd given Hispanic cartels are the primary suppliers of marijuana, cocaine, and heroin. Yet the narrative is fixated on blacks.

If you keep hearing about the “prison-industrial complex” of private for-profit prisons, know that these are only about 5% of prisons. Perhaps all prisons ought to be run by the state, and it’s a conversation worth having, but to declare the system an industry is incorrect.

Would drug legalisation reduce the size of the prison population? Depends. Will cocaine, heroin, methamphetamine and other harder drugs be legalised together with cannabis? I haven’t heard of any meaningful call for these to be legalised, which I don’t oppose, but I suspect Mr and Mrs Middle-class America don’t approve of krokodil sold from the state-licenced dispensaries. (Of course the cannabis dispensaries don’t sell weed to teens either, so this market remains unserved by the state and attractive to criminal dealers.) If hard drugs to all and cannabis to minors remain illegal the cartels will continue their trafficking, the war on drugs will continue, and the cells will remain filled.

Fivethirtyeight(dot)com crunched the numbers, www(dot)fivethirtyeight(dot)com/features/releasing-drug-offenders-wont-end-mass-incarceration/, and even if the US penal system were to release all those incarcerated for drugs offences, the country would still lead the world in incarceration. Further, without complete drug legalisation, police will continue to arrest traffickers and dealers who will be prosecuted, convicted (which are easy to obtain because 95% are caught red handed), and imprisoned.

The American mass media has been complicit in perpetrating fraud on the public by misleading it to think the jails and prisons are filled to the rafters with black men on minor marijuana busts. Given that releasing minor drug criminals, or even all of them, won’t change the prison population dramatically, what’s the intent behind the reporting? Reading the progressive blogosphere and forums, I keep coming across the theory of restorative justice, one where the focus changes from “Who did harm?” to “Who was harmed?” If the demonisation of you know who continues as is, eventually we’ll get to the point where many believe those who are harmed deserved it. Because they deserved it, what crime was committed? For further ideas of how and in what way a new justice system may emerge, read about the British feminists who argue women should never be imprisoned because their criminality is blamed on patriarchy, www(dot)washingtonpost(dot)com/posteverything/wp/2014/11/06/we-should-stop-putting-women-in-jail-for-anything/ . Don’t be surprised when that idea crosses the Atlantic and white supremacy is added.

You are perfectly right : when it comes to matters of crime and race, there is a huge discrepancy between the facts and the mainstream media narrative. Situations that are statistically uncommon receive a lot of attention while events that are extremely widespread ( a young Black man kills another young Black man) receive very little coverage. I believe Thomas Sowell has written about that in Intellectuals and Society.

“kind of drugs offenses that land people is jail and prison are trafficking, dealing, manufacturing, and possession of large enough quantity which indicate intent to distribute.”
Prosecutors often nail people with intent to distribute who are merely using for personal use or dealt a small quantity to a friend a couple times. I saw this a lot at the Public Defender’s office.

“Fivethirtyeight(dot)com crunched the numbers, www(dot)fivethirtyeight(dot)com/features/releasing-drug-offenders-wont-end-mass-incarceration/, and even if the US penal system were to release all those incarcerated for drugs offences, the country would still lead the world in incarceration.”

This is true. I’d still maintain that the drug war is indefensible. But liberalization doesn’t mean we have to start allowing Krokodil dispensaries.
There are other reforms that could reduce the prison population. Increasing felony theft thresholds and adjusting misdemeanor categories (i.e.,The monetary amount that would qualify as felony theft or grand larceny would be increased).

Also, a lot of people get charged with harassment or endangering the welfare of a child (EWC) as a consequence of recurring he said she said disputes with their spouse. Often, the person getting charged in these situations is the one who got to the station last.
There are other non-drug related reforms that could reduce the prison population. I hope to write another article fleshing out this topic further.

Michael brown violently robbed a store and attacked the cop who shot him. This was all confirmed at trial. I think one reason people don’t buy the policy brutality narrative is because its not all that true.

I’m willing to give cops who deal with problem populations the benefit of the doubt because what they are asked to do is so difficult and bad situations are statistically likely to develop at some reasonable rate.

If there is a particular smart reform you are going to propose, propose it on merit. So far the only criminal justice reform in my city is BLM came to town, the cops withdrew from large swaths of the city in response, and now crime has skyrocketed.

One can get many stories of cops mistreatment of white people just by doing some quick internet searches. No one covers it outside of the local news if that because it doesn’t sell with the greivance mongers. This might be news to some people but because its a very dangerous job sometimes the police force is forced to hire questionable candidates. Sometimes they hire qualified people that are just bad people. Sometimes cops choke under the pressure. This is not to defend police brutality when it happens it should be prosecuted to the fullest extent of the law. But it is not systematic and if the goal is zero instances of police brutality then we will be waiting a long time. Criminal justice reform is a chimera we have to be very careful with lest it eats us. Because of the plea bargain system in this country many people seem like pettier criminals then they are in fact. Very few people are being sent away to prison for extended periods of time that are not serious criminals. I recommend Heather McDonad’s work to you hard core criminal justice reformers she might just disabuse you of some of your unfounded self righteousness using hard data and statistics not sentimental pleas or crooked numbers that some criminal justice reformers seem to live on.

Thank you for injecting some data and analytics amongst this ideology-fest. I read Quillette to be informed and not have my prejudices confirmed – reading the rest of the comments here makes me question that.

Further intriguing insights from a recent Harvard study, as reported by the NYT:

“A new study confirms that black men and women are treated differently in the hands of law enforcement. They are more likely to be touched, handcuffed, pushed to the ground or pepper-sprayed by a police officer, even after accounting for how, where and when they encounter the police.

But when it comes to the most lethal form of force — police shootings — the study finds no racial bias.

“It is the most surprising result of my career,” said Roland G. Fryer Jr., the author of the study and a professor of economics at Harvard. The study examined more than 1,000 shootings in 10 major police departments, in Texas, Florida and California”

Which suppprts the new for nuanced, data-suppported debate and policy, not ideology (from either side). It also demonstrates that, controlling for other variables, black people encountering police may not be more likely to be shot, but they are more likely to be pepper sprayed, shoved against wall, kicked, etc. Hope the article’s author has some insights on this.

The same study showed that if blacks cooperate with the police rather then cop an attitude that even things like mild force disparities shrink dramatically, with the most dramatic use of force like pepper spraying actually less likely to happen to a well behaved black person then a white person. The lighter stuff (getting passed down) shrunk to an incredibly low disparity, not worth getting worked up about.

The lesson to take away is that telling black men to behave and defer to police would dramatically improve their lives and basically remove disparities. BLM does the opposite.

“even when we take perfectly compliant individuals and control for civilian, officer, encounter and location variables, black civilians are 21.2 percent more likely to have any force used against them in an interaction compared to white civilians with the same reported compliance behavior“

I know this is a right-wing, white nationalist echo chamber, but anyway:

1. Black Americans are more likely to have their cars searched.

Police are three times as likely to search the cars of stopped black drivers than stopped white drivers, as the chart below, based on data from the Bureau of Justice Statistics, illustrates. Nationally, black drivers are also more likely to be pulled over and less likely to receive a reason for being stopped. In one Rhode Island study, black drivers were stopped more even though they were less likely to receive a citation…

2. Black Americans are more likely to be arrested for drug use.

Police arrest black Americans for drug crimes at twice the rate of whites, according to federal data, despite the fact that whites use drugs at comparable rates and sell drugs at comparable or even higher rates…

3. Black Americans are more likely to be jailed while awaiting trial.

A 2014 study in New York City showed that blacks were more likely than whites or nonblack minorities to be in jail while they await trial, even after controlling for the seriousness of charges and prior record. Other research suggests that this disparity is often due to the fact that black defendants cannot afford to pay bail. The temporary incarceration stigmatizes the defendant, disrupts family life and employment, and makes it harder for the defendant to prepare a defense. In the chart below, “jail” refers to defendants who were offered bail but could not post it; “remanded” refers to defendants who were not given the option of posting bail…

4. Black Americans are more likely to be offered a plea deal that includes prison time.

The same study in New York found that black defendants are more likely to be offered plea deals that include prison time than whites or nonblack minorities. Even after controlling for many factors, including the seriousness of charges and prior record, blacks were 13 percent more likely than whites to be offered such deals…

5. Black Americans may be excluded from juries because of their race.

Researchers found that North Carolina prosecutors were excluding black people from juries in capital cases at twice the rate of other jurors, even when controlling for legitimate justifications for striking jurors, such as employment status or reservations about the death penalty. Other studies have shown that excluding black people from juries can influence deliberations and verdicts. For example, black defendants in capital cases with white victims are less likely to receive a death sentence if there is a black juror.

6. Black Americans are more likely to serve longer sentences than white Americans for the same offense.

A 2012 working paper found “robust evidence” that black male federal defendants were given longer sentences than comparable whites. Black men’s sentences were, on average, 10 percent longer than those of their white peers. This is partly explained by the fact that prosecutors are about twice as likely to file charges against blacks that carry mandatory minimum sentences than against whites.

7. Black Americans are more likely to be disenfranchised because of a felony conviction.

Most U.S. states restrict the voting rights of citizens convicted of crimes. Since black Americans are overrepresented in the criminal justice system, voter disenfranchisement has a disproportionate effect on the black population. According to recent estimates from the Sentencing Project, 2.5 percent of all Americans are disenfranchised due to a current or past felony conviction. For blacks, the figure is 7.7 percent, or about 1 in 13.

8. Black Americans are more likely to have their probation revoked.

Black convicts have their probation revoked more often than whites and other minorities, according to a recent study of probation outcomes in Iowa, New York, Oregon, and Texas. These racial disparities held even when the study controlled for other characteristics of the probationers, such as their age, crime severity, and criminal history. In the chart below, the “unexplained” portion of each bar is the level of racial disparity that could not be explained by nonracial characteristics.

The simple reason why America has more criminals locked up in prison than Russia, China, India, Brazil, Mexico, or Rwanda is that we are richer than them and can afford to lock up more criminals. We have more prisoners than these countries for the same reason why we have more paved roads, more chocolate, and bigger grocery stores: We have the cash and they don’t.

Interesting point; however, i’m curious: Is your position that the extra wealth means more policing? Or that the extra wealth means that there is greater opportunity to commit crimes?

For the former case, the position appears to be that in the other countries they are resource restricted and are focused on production allowing criminals to go unincarcerated. I don’t know, is crime higher but policing/incarceration lower?

In the latter case, if the standard is lower than some crimes are more prevalent here. For example, theft could be argued as more prevalent when the populace is “rich” in items to steal versus if everyone is desolate with nothing worth taking. But this would imply different types of crimes. Less money meaning less demand for narcotics or theft — or perhaps other social constructs like we had here up until 20-30 years ago before everyone got participation trophies and parents were banned from disciplining children under threat of a DFACs visit for any Salem-esque accusation.

That is simply misguided. It’s not about cash, it’s about culture. Besides, criminal justice is a bit akin to the military complex. There is lots of money to be made for private entities. I think that it is there that lies the reason behind such mass incarcerating.

A problem I see is that courts almost always grant “qualified immunity” to police who beat up a civilian for no reason, whether at a traffic stop or in jail. Rarely are these crimes prosecuted. Another related crime is prosecutors who trick innocent young men to confess using coercion and lies, as well as with-holding evidence and ignoring good alibis. Again, rarely prosecuted (Mike Nifong is an exception).
Another: civil asset forfeiture–incentivizes police to act as thieves mainly of poor people
Another: petty crime pursuit (broken fence, uncut grass) as a revenue source
Another: escalating traffic stops for no reason. Like dragging someone from the car when they won’t answer questions. Like pretending the drug sniffing dog got a hit.
Another: no-knock raids by SWAT where people get killed. If men broke into my house at 3am and started shouting at me, all wearing black, I might start shooting and thus get myself killed.
Another: an inability to deal with the deaf, non-English speakers, really drunk, or those having a seizure or diabetic coma. Police expect instant obedience and failure to get it may lead them to assault you, but the cases above it is not possible. I saw an interview with someone with ALS who is frequently stopped by police for walking while drunk because he walks so badly –is not drunk.
Another: use of plain-clothes detectives or undercover officers. They think that if they just announce they are cops (and sometimes don’t) you should respond appropriately, but why should I believe some stranger claiming to be a cop? Always always should have uniforms. There was a case where 2 college girls (of legal age) bought bottled water from a liquor store. The store was undersurveilance and as they left 3 cops came running up (in plain clothes) yelling at them (assuming they were under-aged buying liquor) so they sped away. They thought they were going to get car-jacked, and I would also.

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